GSY18 v Minister for Home Affairs

[2019] FCCA 984

FEDERAL CIRCUIT COURT OF AUSTRALIA

GSY18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 984

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal identified the relevant law – whether the adverse findings of the Tribunal lack an evident and intelligible justification – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 426A, 476

Applicant: GSY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3622 of 2018

Judgment of: Judge Street

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Sydney

Delivered on: 11 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Dunlop
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 11 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3622 of 2018

GSY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 December 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia on 8 December 2014 on a FA 600 Business Visitor visa. The applicant departed Australia on 11 December 2014. On 10 January 2015, the applicant returned to Australia. The FA 600 Business Visitor visa was valid until 10 April 2015. It was not until 20 March 2015 that the applicant applied for a Protection visa. The applicant is of Han ethnicity and his wife and children are still living in China.

3. The applicant claimed to fear harm by reason of reporting corruption of a local officer, and alleges he was persecuted by officials in China and in despair he came to Australia in 2015. The applicant feared an officer of his local village, who the applicant alleged bribed villagers for votes. The applicant feared that this person would take revenge on his family and alleges that the officer still continued to let subordinates make trouble at his house and that public threats have been made if he appeared in the village, and that a simple car accident could remove him very easily.

4. On 20 May 2016, the delegate found the applicant failed the meet the criteria for the grant of a Protection visa. The delegate had found that the applicant was not a person of interest to the Chinese authorities and found that the circumstances of the applicant’s departure from China support a finding that the applicant is not a person of adverse interest to the Chinese authorities. The delegate was also not convinced the applicant was telling the truth in regard to the reasons why he had travelled to Australia the first time, and expressed concern in relation to the applicant’s story involving the official. The delegate found the applicant’s responses implausible, and that he had exaggerated his responses in an attempt to strengthen his claims for persecution. The delegate was unable to be satisfied that the applicant’s claims of persecution were credible. The delegate found the applicant was not a witness of truth.

5. The applicant lodged an application for review to the Tribunal on 27 May 2016. The applicant was invited to attend a hearing by email dated 16 November 2018. The email was sent to an email address identified by the applicant on the application for review, consistent with the statutory regime. Further, the applicant responded to the email by sending in a response to hearing invitation and the applicant acknowledged before this Court that his signature appears on the second page of the response to hearing dated 18 November 2018.

6. The applicant failed to appear at the hearing on 17 December 2018. The Tribunal records indicate that SMS reminders were sent to the applicant in respect of the mobile number identified in the review application.

7. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal identified the applicant’s claims and evidence that had been adduced before the delegate, and referred to the steps taken in relation to the invitation to the applicant to appear before the Tribunal.

8. The Tribunal noted the applicant did not appear at the hearing at the prescribed time and place and that no communication or correspondence had been received from the applicant either to seek an adjournment or to explain the failure to appear. The Tribunal made express reference to the response to hearing invitation form and that no further submissions of any kind had been received. It was in those circumstances the Tribunal, pursuant to s 426A of the Act, decided to make its decision on the review without taking further action to enable the applicant to appear before it.

9. That decision of the Tribunal cannot be said to be unreasonable. The circumstances identified by the Tribunal provide an evident and intelligible justification for the decision taken by the Tribunal under s 426A of the Act.

10. The Tribunal identified the material before it and the absence of the opportunity to explore matters before it with the applicant to satisfy the Tribunal in relation to his claims under s 5AAA of the Act. It was for the applicant to provide sufficient evidence to establish his claims.

11. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

12. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm.

13. The Tribunal found the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The proceedings in this Court were commenced on 24 December 2018. On 31 January 2019, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant explained that the application had been completed, he alleged, by a lawyer who had provided the lawyer’s details and that the applicant was not aware of the hearing date invitation. The Court drew the applicant’s attention to the form completed for the visa, which identified that he did not receive assistance in completing the form. There was nothing on the face of the application lodged for review to identify that there was any lawyer acting for the applicant.

4. The Tribunal notified the applicant, in accordance with the statutory regime, with the email address provided by the applicant and SMS reminders was sent with a mobile telephone number provided by the applicant in the review application. There is no evidence to support any alleged fraud on the Tribunal in relation to the application for review.

5. On the face of the material before the Court, the Tribunal complied with its statutory obligations in notifying the applicant of the invitation to hearing and the hearing invitation response sent by the applicant, with his identified signature, is inconsistent with the applicant’s assertions that he did not receive the email. Even if it were to be accepted that the applicant did not receive the email, the Tribunal sent the email to the email address provided by the applicant and under the statutory regime, the applicant is taken to have received the same. In these circumstances, the Tribunal was entitled to proceed to determine application for review.

6. The applicant’s submissions from the bar table do not identify any relevant error by the Tribunal. The applicant referred to the Tribunal not having accepted his claims. In the circumstances where the applicant failed to appear and given the requirements of s 5AAA of the Act, the Tribunal was not required to accept the applicant’s claims in the absence of the opportunity to explore with the applicant the credibility of the same. This is particularly so in the circumstance of the present case where the delegate had refused the applicant’s claims on the grounds of credibility. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal did not accept that I have suffered serious or significant harm in China or that there is a real chance that I will suffer serious harm or a real risk that I will suffer significant harm if I return to China. The Tribunal made incorrect decision on this finding.

   2. The Tribunal is not satisfied that I have a well-founded fear of persecutions of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that I am the person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal made error on this finding.

2. In relation to ground 1, the applicant’s assertion of suffering serious or significant harm reflects a disagreement with the adverse findings by the Tribunal in circumstances where the applicant failed to appear. In those circumstances, the adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification.

3. The applicant’s disagreement that the Tribunal’s decision does not identify any relevant error. On the face of the material before the Court, the Tribunal correctly identified the relevant law and the adverse findings were open for the reasons given by the Tribunal. No jurisdictional error is made out by ground 1.

4. In relation to ground 2, this in substance again reflects a disagreement with the merits in circumstances where the applicant had failed to appear. The adverse finding as to the applicant not having a well-founded fear was open for the reasons given by the Tribunal. There is no apparent error in the findings made by the Tribunal. No jurisdictional error arises by reason of ground 2.

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019